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Wednesday, September 21, 2011

Why James Ray Mit. Hearing Stopped--Tom Kelly Situation

Arizona Attorney Tom Kelly, center. California Attorney Truc Do, barely visible
 Defendant James Ray, foreground

Don't you love it when an email begins, "Camille, I'm afraid you are wrong on this one?"  In this case, the email comes from acclaimed Arizona criminal defense attorney Michael Kimerer and he has, in the most gracious way possible, set me straight. In answer to a commenter's question about why the sudden illness of James Ray's Arizona attorney, Tom Kelly, should cause the whole mitigation hearing to collapse, Kimerer says it really isn't about needing the presence of a member of the Arizona Bar, as long as the paperwork is in order:
It is true that an attorney licensed in another State who wants to handle a case in Arizona must associate local counsel through a Pro Hac Vice Petition, which has specific requirements including a Certification of Good Standing from the State where the attorney is licensed. Once that is approved the out of state attorney may act independently and there is no requirement that local counsel must be present at all proceedings. 
[emphasis added by me]

But it is not that simple. Law never is. But you knew that. Take a breath. Here we go.

First there is the slightly sticky wicket that Tom Kelly, as Arizona counsel, would have taken on the burden to be answerable to Arizona authorities for the actions of the California contingent, whether he was present to keep an eye on them or not:
However, Local Counsel by agreeing to be local counsel is on the ”hook” should the out of state attorney not perform properly or abandon the client. Usually, there is an agreement between the Local Counsel and the Out of State Counsel defining their responsibilities in a particular case.
 So, if your law license or pesky fines are at risk, it might make one a tad nervous to let a gaggle of exuberant out-of-state lawyers run amok in your hometown courtroom.  Then there's that business of the team of lawyers divvying up the chores, or "defining their responsibilities."  That, I suspect, is where most of the answer in this week's turn of events lies. But, as Mr. Kimerer points out, none of us knows "what the agreement was in the Ray case."  Nor will we ever. None of us really cares anyway. But just knowing such an agreement exists, helps us understand why the mitigation hearing was called off when Tom Kelly couldn't show:
Even if lead counsel objects to going forward without Tom Kelly’s presence, the Court has the discretion to require him to proceed. If it is brought to the Court’s attention that Tom Kelly was prepared to handle a particular aspect of the mitigation (and Lead Counsel was unprepared to do so) it might be a good reason to ask for a continuance.
I think that last sentence that is the one I would put my money on. If Luis Li, Truc Do and the rest of the crew were not the ones who'd been studying up on these witnesses and this particular procedure, Darrow could reasonably conclude it would be an insult to justice to leave a defendant at the mercy of lawyers making it up on the fly through no fault of their own.

Some following this trial have expressed suspicion about this turn of events,  fearing delaying tactics. Looks like Judge Darrow was even a bit irritable over it. Seems rather odd, though, unless there's some strategy that would make a delay worthwhile. Even Martha Stewart chose to serve her sentence, getting it out of the way rather than waste more of life in limbo. All I can do here is bring you the analysis of an expert as to what the forces at work here are: the law, the relationships between lawyers, and how lawyers work.

A very great thanks to Michael Kimerer, who has offered his considerable expertise to this site before. This is an excellent answer and will help the thousands of people feeling frustrated and angry this week to understand how the sweat lodge sentencing came to be put off. And thanks to Jeanne Barkemeijer de Wit for asking.  I certainly learned something and hope you all did, too.

Mr. Kimerer is not affiliated with nor has he participated in any aspect of the James Ray trial.  Learn more about him here.

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